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Of the Manner of sending down a Case to be re-stated, &c. a rate, and the court of king's bench was of opinion that certain burgesses, who occupied lands as tenants in common, had been improperly omitted; the rate (i. e. the order of sessions) was sent back to have the rate amended, by the insertion of the burgesses occupying the land. (1)

Likewise, when the parish officers gave no evidence respecting the amount of the property rated, as tithe rent and composition, the court sent the case back to be reheard, re-considered, and re-stated. (2)

The court not only send down an order, generally for the purpose of being re-stated, but where they think it necessary, remit it, with special directions inserted in the rule by which it is sent down, commanding the justices at sessions to enquire into and state particular facts. (3)

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case a second

Likewise, if the cour tare dissatisfied with the new case, B. R. remits a they will remit it back a second time to the court of session for further inquiry. (4)

SECT. V.

Of the Manner of sending down a Case to be re-stated, and how the Sessions are to proceed.

WHERE a case is sent down to the sessions to be restated, the form of proceeding used to be, before the regulations that rules nisi for quashing orders should be

(2) Rex v. Topham, 12 East, 546.

(1) Rex v. Watson, 5 East, 480. (3) Rex v. Clifton upon Dunsmore, where the case arose upon an order of removal, Burr. S. C. 697. Rex v. Hogg, a case stated upon a poor's rate, Cald. 266. See also Rex v. Margam, 1 Term Rep. 775. ante, 603. (1).

(4) See Rex v. Bray, Burr. S.C. 682. Rex v. Clifton upon Dunsmore, ib. 697. Rex v. Margam, supra, (3).

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time.

Ancient form of remitting orders.

peremptory; to grant a rule to enlarge the former rule, for shewing cause why the order sent up should not be quashed, and also that it be referred back to the justices of the peace in and for the county, to state the facts, or to hear fresh evidence, &c. as the case might be. (1) The rule also ran, that the orders (describing them which were removed by certiorari) be sent back to sessions (2), and further, that the sessions do afterwards return the same to Modern prac- the court. (3) But the modern practice has been, to make a rule that the orders returned with the writ of certiorari be sent back to the sessions to be re-stated, sometimes adding the particular point upon which the court wishes for information.

tice.

Inquiry at sessions, a new

trial.

This rule, together with the original record, is delivered by the clerk of the rules to which ever side applies for it; usually the attorney for the party whose interest it is to have the facts re-stated. They are then carried back, and lodged by him with the clerk of the peace; and the appeal is thereupon entered in the list of appeals for the ensuing sessions.

Where the inquiry directed to be made respects a matter of fact, the rehearing is considered in the nature of a new trial. The parties must, therefore, proceed as if it were an entire new business, and prove the whole of their case over again as they did originally, without taking notice of what passed before. (4)

(1) See Rex v. Nether Heyford, Burr. S.C. 479. Rex . Kniveton, ib. 499. Rex v. Clifton upon Dunsmore, ib. 697.

(2) Rex v. Kniveton, supra, (1). Rex v. Hitcham, Burr. S. C. 489. Rex v. Clifton upon Dunsmore, supra, (1). Rex v. Page, 2 Bott, 736. Pl. 825.

(3) Rex v. Nether Heyford, supra, (1).

(4) Rex v. Page, 2 Bott, 736. Pl. 825., where the court so highly resented the behaviour of the justices in refusing to hear evidence, as to declare, that if any body would move for an information against them, they would certainly grant it. See also Rex v. Bramley, 6 Term Rep. 330. 2 Bott, 743. Pl. 831. S. P. But that it must be a very strong case indeed, with flagrant proofs of their having acted from cor

But it is said, that where a case is sent down for infor- But where remality only, the sessions must not even hear new evidence. mitted for informality, This was holden where a majority of the justices, at the sessions not to second sessions, were not present when the original case hear evidence. was stated at the former one. (1)

Cases are so rarely remitted back by the court of king's Manner of rehearing apbench for inquiry, that rules to regulate the mode of pro- peals. ceeding upon this second hearing of appeals can scarcely be considered as established by the settled practice of any court of sessions.

But as it has been compared by the judges to proceed- Of the notice, ings upon a new trial, it seems as if the appellant ought to serve a fresh notice, in the same manner as the plaintiff is obliged to do, where the record goes down a second time, to have the cause re-tried by a jury. (2)

tinuance.

It seems, also, that the court of sessions must enter con- Of the continuances from the sessions at which the case was originally stated, down to that at which it is re-heard, in obedience to the rule of court. (3) This appears more necessary, as there is no continuance from the inferior to the superior court. (4) Further, it has been held in one case, that an order of sessions, imperfectly stated, and sent back to be re-stated, is quite out of the case, upon the return of the second order, and a perfect nullity. (5) In strictness, Should be a therefore, the sessions ought to make a new order, and a new case. second case should be signed by counsel, and the record drawn up by the clerk of the peace in the same form as that which was originally returned into the court of king's

rupt motives, that would warrant a rule for an information. Rex v. Justices of Seaford, 1 Black. Rep. 432.

(1) Rex v. Bray, Burr. S. C. 682.

(2) See Mr. Tidd's Practice of the King's Bench, vol. ii. 824. 3d ed. (3) See Rex v. Yarpole, 4 Term Rep. 71., post, 617., and the cases cited, ante, 515. (1).

(4) 1 Tidd's Practice, ead. ed. 349.

(5) Rex v. St. George's, Southwark, Burr. S. C. 283.

Sessions may make an order contrary to the former:

Motion to quash this

order on its return.

bench. The sessions may possibly, indeed, by reference to the first special case, so far incorporate it with the second as to make it part thereof; but the most regular and better way is, to draw it up as is before stated.

Upon this re-hearing, the court of sessions may make an order diametrically opposite to that which they had first made. Thus, if the first order of sessions allowed the appeal, and quashed the original order, the second may dismiss the appeal, and confirm the original order. (1)

After the sessions have re-stated the case, a record is to be drawn up and sent to the crown office by the clerk of the peace, in the same manner as that originally returned. A motion is then made in the court of king's bench for a rule to shew cause why this re-stated order, and (where necessary) the original order, should not be quashed. (2) The case is set down as before, by the clerk of the rules for the crown side of that court, to be argued on the day mentioned in the rule. But where the order of sessions last returned differs in the judgment from that first sent up, the party who was formerly represented by the crown then becomes the defendant (3), and the motion to quash the order must be made by counsel on that side. (4)

(1) Rex v. St. George's, Southwark, Burr. S. C. 283.

(2) Rex v. Bath Easton, Burr. S. C. 777. Rex v. Bilsdale, Kirkham, ib. 833. But quære, whether this was necessary, where the original rule had been enlarged, unless possibly where the sessions had made a different order. See ante, 610. (1).

(3) Ib.; and see Rex v. Kniveton, Burr. S. C. 499.

(4) It is unnecessary for the party who obtains the certiorari, to enter into a second recognizance, where the case is returned back to the king's bench under a rule of that court. But quære, whether, if the second order of sessions reverses the first, and the parish who thus become defendants resist it upon the return, they must not enter into a recognizance to secure the opposite party his costs. See the form of a motion in a case nearly similar. Rex v. Ashton Underhill, Cald. 418. ante, 586. (1).

SECT. VI.

Of the Judgment of the Court, and Costs thereupon.

I. Or the court's judgment.

When the case is thus completely stated and argued, The judgment. the court proceed to give judgment.

They have not only an appellant but an original juris- Jurisdiction for B.R. over diction over the orders removed. For if an order of re- orders removal, or any other is returned into the court of king's moved. bench, after the time for appeal has elapsed (1), it may be quashed or confirmed. This may be done also where

there has been an appeal, although the sessions have exercised no jurisdiction over the order, but dismissed the appeal for other reasons. (2)

.

But the court has no jurisdiction to amend a poor rate by 41 Geo. 3. c. 20. s. 1. They can only quash an order which confirms an improper rate, leaving the rate to be amended where necessary, by the sessions. (3)

Jurisdiction

when more

orders than

It does not seem absolutely necessary, in some cases, for the court of king's bench to exercise any jurisdiction over an original order, from which there has been an one. appeal to sessions. Thus, if an order of sessions quash the justices' order, and the order of sessions is affirmed, there is no occasion to pronounce any judgment upon the original order, because it remains quashed by that which was made at sessions. So, if an order of sessions confirm

(1) Rex v. Sutton St. Nicholas, Burr. 276. and ante, 587.

(2) Rex v. Stanley, Cald. 172. Where, in an order of bastardy, the court quashed the original order of adjudication as defective, and confirmed the order of sessions, dismissing the appeal against it.

(3) Rex v. Milton, 3 B. & A. 120.

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